Concepcion v. U.S.: Courts can consider intervening changes in law and fact under First Step Act
District courts considering motions for sentence reduction under the First Step Act may consider intervening changes of law – such as changes to the Sentencing Guidelines – and of fact – such as behavior in prison, the U.S. Supreme Court held June 27 in Concepcion v. United States.
In 2007, Carlos Concepcion was convicted of distributing crack cocaine. He was sentenced under a scheme that had a 100-to-1 disparity between crack and powder cocaine, and he also was sentenced as a “career offender” – both of which led to enhanced sentences.
In 2010, Congress passed the Fair Sentencing Act, to correct the harsh disparities between crack and powder cocaine. The Sentencing Commission subsequently retroactively amended the Sentencing Guidelines to lower the range for crack offenses.
Initially, Concepcion was not eligible for retroactive relief under the Sentencing Commission changes, because he was a “career offender.” But he became eligible in 2018, when Congress passed the First Step Act.
The First Step Act authorizes district courts to impose a reduced sentence “as if” certain sections of the Fair Sentencing Act “were in effect at the time the covered offense was committed.”
Concepcion applied for a sentence reduction.
But the district court denied relief. It ruled it could not consider later changes in law, except for the Fair Sentencing Act, and it refused to consider Concepcion’s post-sentence evidence of rehabilitation or the Government’s countervailing evidence of prison disciplinary violations.
The First Circuit affirmed.
The Supreme Court granted cert. to resolve a circuit split on whether courts “must, may or may not consider intervening changes of law or fact” in considering sentence modifications under the First Step Act.
The Court, in a 5-4 opinion, held courts may consider intervening changes of law and fact.
“Federal judges exercising sentencing discretion have always considered a wide variety of aggravating and mitigating factors relating to the circumstances of both the offense and the offender,” the Court said.
“The discretion federal judges hold at initial sentencings also characterizes sentencing modification hearings,” the Court said.
“Accordingly, federal courts resentencing individuals whose sentences were vacated on appeal regularly consider evidence of rehabilitation developed after the initial sentencing,” the Court said. “Similarly, district courts in resentencing proceedings frequently consider evidence of violence and rule breaking in prison.”
“Where district courts must calculate new Guidelines ranges as part of resentencing proceedings, courts have also considered unrelated Guidelines changes in their discretion,” the Court said.
“The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution,” the Court said. “Congress is not shy about placing such limits where it deems them appropriate.”
“Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district court’s sentencing discretion,” the Court said.
“The text of the First Step Act does not so much as hint that district courts are prohibited from considering evidence of rehabilitation, disciplinary infractions, or unrelated Guidelines changes,” the Court said.
The only limitations on a court’s discretion in the Act are that a court may not consider a First Step modification if a petitioner has already received a reduction under the Fair Sentencing Act, or if a court has considered and rejected a motion under the First Step Act.
“Neither of those limitations applies here,” the Court said.
“The Court therefore holds that the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act,” the Court said.
The Court noted that all the Act requires is for district courts to consider changes of law and fact, and make clear that the court has reasoned through the parties’ arguments.
“[T]he Act does not require a court to reduce any sentence,” the Court said.
“[A] district court is not required to be persuaded by every argument the parties make, and it may, in its discretion, dismiss arguments that it does not find compelling without detailed explanation,” the Court said.
Moreover, “[t]he broad discretion that the First Step Act affords to district courts also counsels in favor of a deferential appellate review,” the Court said. “As a general matter, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.”
Justice Kavanaugh dissented, joined by Justices Alito, Barrett and Chief Justice Roberts.